The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,
This action, which is brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before this Court on defendant's Motion  to Dismiss or in the Alternative for Summary Judgment, plaintiff's Motion  for Rule 11 Sanctions, and plaintiff's Motion  to Supplement Plaintiff's Motion for Sanctions. For the reasons set forth below, defendant's motion  will be GRANTED, plaintiff's Motion  for Sanctions will be DENIED, and plaintiff's Motion  to Supplement will be DENIED.
This opinion focuses solely on plaintiff's remaining FOIA claim against the FBI, because all other causes of action have been dismissed. See Mem. Op. ; Order granting Tax Division's Motion to Dismiss .
On August 21, 2007, Timothy Brown ("plaintiff") submitted a FOIA request to the FBIHQ for "a copy of, [sic] all records contained in your files and/or outside agent files and/or related files which contain and/or pertain to the following: (1) Timothy Demitri Brown, (2) Operation Disturb the Peace, and (3) BLSB (LA) Inc." On a subsequent request form, plaintiff withdrew his request for "Operation Disturb the Peace" and "BLSB (LA) Inc.," leaving only the request for "Timothy Demitri Brown." See Decl. of Dennis J. Argall ("Argall Decl."), Ex. B. In response, FBIHQ informed plaintiff that a search of its Central Records System ("CRS") yielded no responsive documents. Plaintiff administratively appealed to the Office of Information and Privacy ("OIP"), but FBIHQ's determination was affirmed. OIP suggested to plaintiff that he submit requests to the FBI's Houston and New Orleans ("FBI-NOFO") offices. On October 31, 2007, plaintiff submitted a FOIA request to FBI-NOFO for records pertaining to himself, "Operation Disturb the Peace," and other reports. FBI-NOFO made three initial disclosures to plaintiff: 658 pages on January 21, 2009, 534 pages on June 18, 2009, and 438 pages on September 16, 2009. Redactions in these releases were made under the Privacy Act and FOIA exemptions 2, 3, 4, 6, 7(C), 7(D), and 7(E). Plaintiff sent an appeal to OIP on September 16, 2009, which was denied.
Plaintiff filed his initial complaint  on July 30, 2010. Subsequently, FBI searched its Electronic Surveillance ("ELSUR") records and released three audio CDs on November 4, 2010, withholding information pursuant to the Privacy Act and FOIA exemptions 6 and 7(C). Plaintiff appealed this response to OIP on November 9, 2009, which was closed administratively because of his past-due fees. Plaintiff filed an Amended Complaint  on November 30, 2010 and a Second Amended Complaint  on June 24, 2011.
Subsequently, FBI conducted another search, which revealed that some files it had previously mentioned to plaintiff had not been processed. After processing about another 800 pages, FBI released 341 pages to plaintiff on November 30, 2011 (withholding information pursuant to the Privacy Act and FOIA exemptions 3, 6, 7(C), 7(D), and 7(E)).
FBI collaborated with two other agencies in response to plaintiff's request. FBI referred three documents to the Drug Enforcement Agency ("DEA") for review. DEA instructed FBI to withhold information on six pages under FOIA exemption 7(C). FBI also forwarded 21 pages to the Marshals Service for direct response to plaintiff. On October 25, 2011, the Marshals Service released documents to plaintiff (withholding information pursuant to FOIA exemptions 6, 7(C), and 7(E)).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss is appropriate when the complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Such a failure occurs when the complaint is so factually deficient that the plaintiff's claim for relief is not plausible on its face. Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). "Asking for plausible grounds to infer [a right to relief] does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the right to relief]." Id. at 556. Though facts in a complaint need not be detailed, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept all factual statements as true when deciding a 12(b)(6) motion to dismiss. Id. at 678. However, conclusory legal allegations devoid of any factual support do not enjoy the same assumption of truth. Id. at 679. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
Plaintiff filed his Second Amended Complaint  pro se. "A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erikson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Nevertheless, a pro se plaintiff's complaint "must present a claim on which the Court can grant relief." Utterback v. Geithner, 754 F. Supp. 2d 52, 54 (D.D.C. 2010) (citing Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002)).
In this case, the remaining cause of action is succinct enough to reprint here:
12. Federal Bureau of Investigations [sic] has unlawfully refused and/or withheld records in the agency's files concerning plaintiff.
13. Plaintiff filed a FOIA request with the agency on November 2001 and October 31, 2007.
14. Plaintiff's request was assigned number 1091943.
15. The agency has unlawfully withheld the requested records and/or claimed inapplicable exemptions.
Pl.'s Second Am. Compl. ¶¶ 12--15. Just as in Iqbal, "[i]t is the conclusory nature of [plaintiff's] allegations, rather than their extravagantly fanciful nature, that disentitles them from the presumption of truth." Iqbal, 556 U.S. at 681. The only factual allegations in this complaint are the dates plaintiff filed his FOIA request and the number his request was assigned. For the purposes of this 12(b)(6) motion, the Court accepts these facts as true. See Iqbal, 556 U.S. at 678. However, the Court does not accept as true paragraphs 12 and 15, which are legal conclusions. See id. at 680 (considering the plaintiff's allegation to be a legal conclusion undeserving of assumption of truth). This court is willing to accept as true the empirical facts plaintiff presents in his pleadings, but to accept as true that defendant unlawfully withheld records would be to decide the case on its merits without a trial. This Court refuses to do so.
Because this Court will not assume the truth of paragraphs 12 and 15, it must decide whether the remaining facts, accepted as true, state a claim upon which relief can be granted. The complaint must supply "enough fact to raise a reasonable expectation that discovery will reveal evidence" of wrongdoing and raise plaintiff's right to relief above pure speculation.
Twombly, 550 U.S. at 555--56. The facts that plaintiff presents in this case do not lead to a reasonable expectation that discovery will reveal evidence of wrongdoing and a right to relief. Nothing about plaintiff's FOIA number and filing dates suggests a right to recovery. Asserting that the FBI "unlawfully withheld the requested records and/or claimed inapplicable exemptions" does not rise above pure speculation, for plaintiff has not supported his contention with even a scintilla of factual evidence.
However, the Court recognizes that plaintiff could amend his Complaint with the required factual material, including affidavits and the communication between himself and the FBI. Because these documents are already in the Court's possession, there is no reason to wait for plaintiff to file yet another amended Complaint. Despite its objections, defendant has proceeded with litigation and disclosed the very documents that would provide the factual foundation for a proper Complaint. In the interest of judicial efficiency,*fn1 defendant's Motion to Dismiss will be denied and instead, the Court will consider its Motion for Summary Judgment.
Motion for Summary Judgment
Summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the trier of fact must view all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat summary judgment, a factual dispute must be capable of affecting the substantive outcome of the case and be supported by sufficiently admissible evidence that a reasonable trier of fact could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986).
An agency may be entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. See Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1981). To meet its burden, a defendant may rely on reasonably detailed and non-conclusory declarations. See McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983).
In a FOIA case, the court determines de novo whether an agency properly withheld information under a claimed exemption. Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). "The underlying facts are viewed in the light most favorable to the [FOIA] requester," Weisberg, 705 F.2d at 1350, and the exemptions must be narrowly construed. FBI v. Abramson, 456 U.S. 615, 630 (1982). However, courts generally defer to agency expertise in national security matters. See, e.g., Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (according "utmost deference" to classification affidavits); Krikorian v. Dep't of State, 984 F.2d 461, 464--65 (D.C. Cir. 1993) (acknowledging "unique insights" of executive agencies responsible for national defense and foreign relations). While the agency must not withhold information in bad faith, Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), the affidavits submitted by the agency to demonstrate the adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).
In this case, defendant accurately states that plaintiff's allegations are "not entirely clear from his complaint." Def.'s Mot.  to Dismiss or in the Alternative for Summ. J. at 7.
However, for the purposes of deciding summary judgment, this Court will interpret plaintiff's Complaint as alleging both an inadequate search and improper use of exemptions.
In responding to a FOIA request, an agency must conduct a reasonable search for responsive records. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Weisberg, 705 F.2d at 1352. An agency is not required to search every records system, but need only search those systems in which it believes responsive records are likely located. Oglesby, 920 F.2d at 68. The adequacy of the search is determined by whether it was "reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. ...